Hayden said the Constitutional threshold is "reasonable" cause, not probable cause. Sorry Kevin. Hayden 1, Constitution 0.

Was this the same administration that was spying on UN delegations?

cynical take: Because I fucking can

And this is something Sen. Rockefeller couldn't understand???

why cherrypick, kevin?

why not carry more of the speech?

here's the link for those daredevils who prefer not to be spoon-fed by Daddy.

://www.fas.org/irp/news/2006/01/hayden012306.pdf

They bypassed FISA because they're involved in domestic spying on opponents of their regime. It's painfully obvious yet it remains the elephant in the room no one sees or dare speak of. The DNC, Congrssional Democrats (and probably many Republicans), the ACLU, Sierra Club, you name it. It's agreed terrorists would gain or evade nothing by Bush following FISA. The 72 hour retroactive clause assures that. What's left to explain such criminality? Who among you would bet next week's paycheck Bush ISN'T wiretapping those I've mentioned and others?

The standard for a warrant according to the fourth ammendment of constitution is "probable cause". In order to get past the current legally accepted definition of "probable cause" you have to pass a hurdle called extra-super-duper-stare decisis or pass another ammendment.

Steve is correct. When it becomes public precisely who they spied upon Kevin's question will be answered.

Poor LTG Hayden couldn't even spell out the Fourth Amendment today. He tried to spin, it failed.

The answer to Kevin's question: they were spying on people for whom there was no probable cause to suspect that they were engaged in illegal activity. It's as old as the hills--they couldn't meet the burden of proof when going before a rubberstamp court because they had no legal basis for wiretapping the people they wanted to wiretap. My guess is that they were wiretapping journalists with contacts in the Middle East.

That's what happens when you break the law--resort to patriotism, lie about it, cover it up, and send people like LTG Hayden out before the reporters to try to 'confuse' the issue. The only thing that was confused today was LTG Hayden's understanding of the Fourth Amendment.

Next talking point, please.

So there must be more to this. But what?

I think it's just a power grab by the Unitary Executivists. They're proving that the president can do whatever the hell he wants.

So there must be more to this. But what?
---
they are lying their asses off about it.
this is the program.
hayden is just parsing words, doing what sees as his duty to the CIC. I wonder why they didn't send Hadley out.

I think what Hayden is saying is that the NSA can conduct a "reasonable" search and seizure without probable cause but they can only conduct an "unreasonable" search and seizure if they have probable cause. I'm guessing reasonable would be like taking your computer hard drive and unreasonable would be like taking your heart.

Why is it that those NSA guys are usually so quiet?

Two statements from LTG Hayden stand out:

In addition, Bush and Hayden provided varying and sometimes contradictory descriptions of who has been targeted by the NSA spying. Bush said the program involved a "known al Qaeda suspect, making a phone call into the United States." Hayden said one of the ends of an international call must be overseas but did not indicate that the suspected al Qaeda link must be foreign.

When LTG Hayden says that one of the ends of the call must terminate overseas, he is being mindful of the basic tenet of NSA collection--communications must be foreign and not involve US persons. This statement clearly shows that he knows they broke the law by going around the FISA court and by not observing USSID 18 rules. This 'contradictory' statement isn't by accident--this is where they are trying to shift the debate and clarify something that has already been clarified.

Namely, the Bush administration has already admitted that they were conducting wiretaps without the necessary warrants--a clear admission that US persons were being eavesdropped on and their conversation did not necessarily involve a foreign person at the other end of the conversation. I would suggest that people consider this possibility--that they were collecting on US persons all along and no foreign communications were involved. There might have been instances where two US persons were being collected on, one in the US and one overseas. Now, without a FISA warrant, that's illegal as hell and they know it.

Hayden echoed a claim earlier this month by Vice President Cheney that, if the NSA program had been in place prior to the Sept. 11, 2001, attacks, "it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States."

Yeah--Able Danger proved that. And it was legal, and they shut it down to keep from revealing that they can catch terrorists without breaking the law. Whoops. How many people caught that lie today?

As part of its all-out campaign to defend its indefensible illegal domestic wiretapping program, the Bush administration is turning to one of its tried and true marketing techniques - branding. The product? The "Terrorist Surveillance Program"...

For the full story, see:
"Branding the Domestic Spying Scandal."

Jim Lehrer interviewed Albert Gonzales and went pretty awful

I really miss hard hitting reports like Sam Donldson. I get so and tire of reporters that just the lying from Bush and his administration even as they know these guy are just lying.

It would be interesting to know when the legal FISA requests from the administration began to diminish.

If one has decided to skip FISA, how much passion still remains?

The standard for a warrant according to the fourth ammendment of constitution is "probable cause". In order to get past the current legally accepted definition of "probable cause" you have to pass a hurdle called extra-super-duper-stare decisis or pass another ammendment.

B about nails it.

Essentially, what the Bush Administration is trying to tell us is that the 4th amendment is repealed during wartime, at least as far as signals intelligence, even though the 4th amendment makes no such distinction, and both the 3rd and 5th amendments do.

Effectively, this means the president can spy on whoever he wants to without oversight or sanction, because it is the president and only the president who determines the threshold for whether one ought be seized, in the area of signals intelligence, during "wartime", and since the enemy can be both inside and outside the United States, the president is entitled to listen in on any signal he pleases, including each of us in this thread if he so chooses and is able to identify us and thus get our phone numbers.

In this case, the president claims that this threshold must be "reasonable", but he could have just as easily said the threshold was "possible", since he entirely is the authority for this standard, according to his argument, and the distinction between domestic and international calls seems irrelevant.

Oh, and I've been working all day and haven't had time to think deeply about the above summation of the prior thread and the president's position, so I'd appreciate if others would improve upon or correct it where appropriate.

Interesting theories. Here's another one:

Perhaps this was motivated simply by the desire to have a fight over it. Then Democrats take the side of the terrorists, and Bush is on the side of defending America. Pushing things just a little too far, far enough to get the Democrats against it, is this administration's MO. Maybe this program came from the same mentality.

Another explanation, somewhat less nefarious ... The administration wanted to scoop up lots of data for statistical purposes. For example, they wanted to see how often an average American uses the word "Osama," how often that word is used in an average conversation spoken in Arabic, how often that word is used in calls placed to Afghanistan, etc. They wnated to set statistical baselines so that they could detect anomalous behavior.

The problem is, the Fourth Amendment forbids the scooping up of private data from Americans without their consent. Neither the FISA Court nor Congress would be able to permit such a program, even if they believed it had promise as a way of identifying genuine security threats. So the Administration did it anyway.

... At any rate, that's my theory. We have a right to an investigation to see if it's true.

Yeah, Boronx has the same theory I have. We already know that Bush tapped UN ambassadors before the Iraq vote. That's probably just the tip of the iceberg - the one we found out.

My only real question is whether we'll see another leak any time soon showing an even clearer example of a politically-motivated wiretap..

I just read the earlier post from today in which Kevn Drum quotes General Hayden to argue that the administration was not involved in generalized data-mining. I don't think we should necessarily believe the General, however.

KEVIN DRUM: Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

Let's see Rove campaign this year on repealing the 4th amendment...sound like a real winner!

Fine, I read the entire PDF, boring, but I did it. So what, so fucking what.

The Bush line is this: We broke the law to fight terrorism and we ain't gonna apologize. Its a gutsy move and they hope the word terrorism will scare everyone into accepting that laws can be broken to fight terrorism. This people, is a dangerous precedent.

The angle for Dems needs to be we can fight terrorsim without breaking down our legal system, which ultimately, is what the terrorists want anyway, no?

Once you start breaking laws, where does it stop?

Another point I've dying to make. The taps started 911, nearly 5 years ago. That is plenty of time to get the rules changed in FISA to make this legal. Why didn't they do that?

That is the elephant in the room, and LTG Hayden did'nt say shit about it

They keep repeating that it's the single most secret thing in the US government and that revealing it really blew open a big deal. Let's assume that's actually true. The US government has a lot of really secret stuff, and in this case we can say it's not some kind of undercover agent, so that means the most secret thing
is the technology and method, which means, in that it is the most secret thing, that it has to be something quite beyond what is apparent to, or understood by, the general public.

I think that a retired director of the NSA coming right out and doing flack work on this indicates it's something of a nature they really don't want to get around and I think it's because there's more than one angle to the technology question.

I think it's something more in the way of –when the giant NSA satellites were first deployed in the 1980s they must have superceded an earlier program, which probably, nonetheless, remained operative because it, like the U2, was more flexible than stationary satellites. I think it went on for years as a kind of institutionalized money-maker for whoever was building the equipment, because it was so black no one could challenge it; and, then, it almost accidentally proved it's value in Afghanistan.

I think that's a large part of what they're worried about here, and, also, I think this story speaks to these recent subpoenas to search engines –they're trying to accumulate a body legal precedent on the one hand, and information from a legally known source to give a veneer of legal verity to info they've acquired clandestinely.

Is there a decent legal/constitutional blog discussing this issue?

The real journalists are talking to constitutional experts right now but it will take a day or two for them to write their articles.

Does the constitution ever protect a "reasonable" search and seizure without a warrant and without probable cause? Clearly it violates FISA, but as I've stated above it seems to be unconstitutional too.

I can only hope to see commenters like Secular Animist, Jimm, Boronx, cmdicely, Advocate for God, OBF and numerous others I have forgotten (Global Citizen) more regularly on Digby's blog or even firedoglake. The comments here are the best but the primary board since Hilzoy and Obsidian Wings have left has been awful. Between the excusing of declaring citizens as enemy combatants, and the slamming of transit workers hoping for a better pension to Kevin not disapproving in the least of a dozen plus innocents in the latest attack in Pakistan on the hope that we got one or two bad guys I have had enough cringing and reading about 90% of commenters taking him to task for his centrist positions. Keep on lovingly quoting the Corner, Marshall Wittman and other right wing sites. May your man Kaine give a nice rebuttal to the Bush SOTU addy.

Just like a King, the President seeks to make his will legal when it has been illegal. I see that more people are prepared to debate whether this should be law after the chicken has been removed from the coop. As Citizen Gore said, it is illegal, everyone knew it was illegal, yet they went ahead and did it anyway.

What else have they done illegally that when caught they'll exclaim "Oh, we would have mentioned it...in fact we did mention it...and we would have brought it to the attention of the public if asked...although we couldn't because it involved covert activity that...and now we're going to see if the Congress approves our creation of a new law by voiding activities proscribed by an old law so that we can continue to serve and protect the Constitution!"

How about we stop the slide while the unknown branches of our government are still in their infancy? Because the unknown and unaccountable government is precisely what the Constitution was designed to protect the people from--something the current gang see little interested in.

If I remember right, even Kevin had bought into this datamining BS, as if it is ok to break the law if you used what some perceive as an advanced algorithm.

There clearly needs to be a special prosecuter assigned to get to the bottom of this criminality.

based on what I know about the program,/i>

do tell o' wise one

...because I haven't heard one iota about the program...I have only heard ridiculous justification that by any reasonable standard could land these people in jail if any of this were ever brought to criminal trial...

Can you elaborate on what you have heard about the "secret" program that can not be revealed without giving away secrets? What are you willing to sign off on?

Isn't this just standard Bush asministration MO. Throw up as much different shit as possible and see what sticks. How many times have they changed their story after the inital one was a dud? (Iraq, Social Security, Plamegate, Iraq, etc..) This is no different.

Please see my article on Islamic Theocracy, click on url link.

Oops: here it is: http://eteraz.wordpress.com/2006/01/23/caliphate-the-future-of-islamic-theocracy/

Here's a comment on constitutionality that seems to explain where Hayden is coming from.

http://www.dailykos.com/comments/2006/1/23/18342/1340/293#293

But it seems to me much more nefarious to collect data on someone without their knowledge and without any judicial oversight -- than to conduct a search at an airport (where the presence of the person in a security area implies consent) or in a traffic stop where a person is behaving suspiciously. In this case (even in the absence of FISA) I vote for "unreasonable search and seizure".

Violating FISA and not asking for an ammendment to FISA is clearly meant as a means of avoiding all oversight. It is plain that nothing would or probably did stop them from using "possible", "maybe", or "I wonder what the girl in the apartment next to mine is talking about" as their new standard.

So why didn't they ask Congress for that change? It certainly would have passed easily. The Patriot Act passed 99-1, after all. Hell, based on what I know about the program, I probably would have voted to approve it as long as it had some reasonable boundaries.

So there must be more to this. But what?

I commented on this on the earlier thread:

"It isn't that Congress WON'T change the law, it's that Congress CAN'T change the law. In particular, amending FISA to provide for a lower standard than "probable cause" would likely make FISA unconstitutional.

"The probable cause standard is a constitutional standard for searches under FISA that constitutionally require warrants (such as entirely domestic surveillance; I think it is fairly clear that the searches involved in the presently discussed NSA program - which are NOT domestic, but rather international - do not constitutionally require a warrant). It cannot be lowered by a simple Act of Congress.

"Thus, your objection that Congress WON'T change the law is unfounded; Congress CAN'T change the law."

http://www.washingtonmonthly.com/archives/individual/2006_01/008065.php#806419

Steve Gilliard has suggested they were monitoring Muslims, comparing it to the internment of Japanese-Americans during WWII. We already know they were monitoing radation levels near mosques. I dunno if that's true but it sure seems plausible.

Yes, this is just exactly that, the Bush administration changing its story when the first one didn't work, that is their method of operation.

But it's also they're method of operation to not give a rats ass about legal nicety, or precedent, or anything at all except the uninhibited, most vulgar and abusive expression of their own power, and so once these people started thinking about the NSA I really can't imagine they would have thought twice about turning its' full capacity loose inside the US simply because they could do it.

It's because they were using the agency's best capabilities they were perfectly correct in saying that exposing it exposed the most secret things in the US government. Realizing that the more they said that the more it made people wonder, they are now backtracking and saying it's just garden variety wiretapping.

But they were right the first time, that's why this ex-Deputy Director of the NSA was out there shilling for them. The NSA can hardly be happy about it.

So there must be more to this. But what?

What, indeed.

Sincerely,
J. Edgar Hoover and Richard M. Nixon

I'm with you, Drum. All they needed was a reasonable change to FISA to require no standard of proof for anything they wanted to do.

Just write that into the law.

Isn't that right, Drum?

Another point of view on this from a former chief counsel for the Senate Intelligence Committee, here.

Remember what came out during John Bolton's confirmation hearings:

At the hearing in late April, Bolton, a former Under Secretary of State for Arms Control, told Congress that since 2001 he had asked the NSA on 10 different occasions to reveal to him the identities of American citizens who were caught in the NSA's raw intelligence reports in what appears to be a routine circumventing of the rules governing eavesdropping on the American public.

(snip)

The "NSA received - and fulfilled - between 3,000 and 3,500 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and Australia) that initially were deleted from raw intercept reports," Newsweek said in its May 2 issue. "Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000. About one third of such disclosures were made to officials at the policymaking level; most of the rest were disclosed to other intel agencies and, perhaps surprisingly, only a small proportion to law-enforcement agencies."

It's possible that the NSA, simply for technical reasons, scoops up large amounts of domestic as well as international communications. Given that storage is cheap, they might just have been keeping almost everything, going back into it at will.

Folks, when Drum says he would have supported something, he means he would have supported what they claim to be doing, not what it appears they are actually doing. In other words, he's saying that they're lying.

Irony isn't dead, but too many of us have stopped recognizing it.

Congress cannot change the FISA standard from probable cause to a lower standard. "Probable cause" is in the Fourth Amendment.

Juan Cole describes it thus:

Bush says that he wants to watch anyone who calls the phone numbers associated with al-Qaeda. But some of those phone numbers were for food delivery or laundry.

Here's my attempt to clarify:

No standard lower than "probable cause" can be used for a FISA warrant because of the phrase "no warrants shall issue, but upon probable cause" in the fourth ammendment to the constitution.

A lower standard might hold for a "reasonable search and seizure" without a warrant (i.e. police pat down at the scene of a crime).

Any legislation making it easier to get a wiretap could not utilize FISA court warrants and might be found unconstitutional as an "unreasonable search and seizure".

BAD JIM: Folks, when Drum says he would have supported something, he means he would have supported what they claim to be doing, not what it appears they are actually doing. In other words, he's saying that they're lying. Irony isn't dead, but too many of us have stopped recognizing it.

I can't believe more people are not astounded that Hayden doesn't seem to know the Constitution from his asshole. Especially, as he himself points out, the 4th amendment should be a prime directive for the NSA.

Karl Rove and Ken Mehlman are hoping the Clueless Dems keep beating this dead horse right through the 2006 elections, guaranteeing excellent results for the GOP!

There is a comment at Kos that talks about the way Renquist broke the 4 amend. into sections,right between the reasonable, and probable part, just the way Hayden did today, I'm sure this will be the stand they take, once they have Alito on the court

There definitely seem to be some smokescreens out there, and after reading the PDF, the 72-hour deal seems to be one of them. Something else is going on here...perhaps initial surveillance of all international phone calls based upon "profiling", and then weeded down as people are determined not to be a threat and their names are blacked out - i.e. "suppressed". Perhaps something more dangerous. I doubt there's some fabulous technological breakthrough method; if it has anything to do with technology, it's that we are able to spy on folks with instruments that they would never ever suspect.

Yes Cranky, but at least we can answer Kevin's question. No one can put a break in the 4th ammendment between warrants and probable cause.

Connect the dots people.
They have been wiretapping the lines of Dem leaders and the media.
They are blackmailing people.
What could be more obvious?

I am in agreement with those who think the bushbots are misusing their power.

What I hope to achieve by visiting progressive blogs - is to knock some sense into party regulars.

This stuff is not confined to Republicans. And when I see you all asking "why don't OUR guys DO something!" -- I am reminded of someting Newt Gingrich said during the Lewinsky stink...

I thought it was shocking when he said it and nobody made much of it... in essence, he said that all of Clinton's abuses would come back to haunt him when the worm turned...

Gingrich was on a panel show -- and it was chilling the way he cautioned democrats about not challenging the excesses and improprieties of the clinton whitehouse... recess appointments, abusing executive orders to bypass congress... the TWA 800 investigation, Ruby Ridge, Waco, and even OKC --

The worm has turned... and I am a bush hater of the nth degree... but Gingrich had a point.

The DEMS submit to a lawless clinton white house and now complain that Bush has gone even father - making the executive office the most powerful in history.

All the handwringing on the pages of Daily Kos, Slate, Counterpunch, Lew Rockwell, Antiwar.com Huffington post... they all make it sound like this monster bush was spawned from different cloth.

I maintain he was not. I think the culture of corruption and consolidation of power is so far gone in Washington that nobody has any standing to protest... it's mutually assured destruction... they are ALL DIRTY ... they are ALL corrupt.

and the Dems cannot garner enough clean hands to take down the monster on the RIGHT

The main defense of GWB is that he acted on the advice of his lawyers.

So the worst charge that can stick on these guys is that their lawyers don't know shit about the Constitution.

Very clever.

Sadly, too clever for the country.

TWA 800 investigation, Ruby Ridge, Waco, and even OKC

My chronies and I made a killing on those deals, bitch. I especially like my power grab on flight 800.

Congress cannot change the FISA standard from probable cause to a lower standard. "Probable cause" is in the Fourth Amendment.

Not necessarily true. As Orin Kerr points out, people making phone calls from the US to overseas are on a dividing line between where the Fourth Amendment applies and where it does not. E.g. the Fourth Amendment doesn't mean customs officials can't search your bags without a warrant about entering the country. Thus, nothing about the Fourth Amendment necessarily governs these calls nor the burden of proof necessary to justify them. However, as Article I of the Constitution clearly states, "Congress has power of the Regulation and Government of the armed forces," which would include the modern NSA. Alas, Congress can decide which rules are acceptable for NSA to follow and which ones are not. If there is a gray area then it is up to the courts to decide. Either way, it is far from clear that Congress "cannot" change the statute from "probable cause" to "reasonable suspicion" when dealing with calls between domestic and international persons.

"chronies." Are those the guys who hang around you that just never, ever go away?

Adding to the mystery here, from my point of view, is that the WH has known, I guess for over a year, that the NY Times was sitting on this story.

Why didn't the WH start to make moves to insulate themselves from the illegalities by broaching the wiretap issue at least to Congress, and seek its approval for the program?

If they rightly thought that the wiretaps were innocuous, why wouldn't they have expected that Congress would simply legitimize what they were doing, taking the wind out of the sails of the story, robbing it of any real punch?

Chronies are my cronies that supply the chronic.

http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2006-01-24T064852Z_01_N19193346_RTRUKOC_0_US-POLITICS.xml&archived=False

O'Canada!

Elrod, they can search your bags when you fly from Austin to Cincinatti without a warrant.

What if my phone call from Detroit to Buffalo gets routed through Canada? Seems it should go through NSA "customs" just to make sure it didn't pick up too many bottles of maple syrup without paying a tariff.

Chronies are the lingering thoughts of people we knew in a previous life.

frankly0 has a point --why did they not seek to legitimize it when they had at least a year's warning that at least one media outlet had the story?

I think the answer is sheer arrogance and sheer stupidity. They had better things to worry about than some trivial complaint some not-historically significant little people might have.

Presumably if the NSA is listening to an overseas al Qaeda number, they don't have to stop listening when that number calls the US. Do they need to get a warrant at that point? How about if a US number calls into a tapped phone in, say, Afghanistan?

It seems to me that the real fuss is because, if you connect the dots between Defense Dep't surveillance of 10-person antiwar demonstrations, and NSA surveillance of unknown amounts of phone and email traffic, the perimeter could arbitrarily contain anyone. After all, by the logic of "you're either with us or with the terrorists," a dissident journalist could be defined as an enemy combatant. If you're paranoid enough.

Karl Rove and Ken Mehlman are hoping the Clueless Dems keep beating this dead horse right through the 2006 elections, guaranteeing excellent results for the GOP! Posted by: GOPGregory on January 24, 2006 at 1:24 AM | PERMALINK

One thing I can't figure out GOPGregory, is why you and they would be so keen to give the Democrats advance notice that they're clueless and walking into a trap.

Doesn't make sense.

"Reasonable cause??"

In all my years of school, I have never heard of a standard called "reasonable cause." There is a very low standard called "reasonable suspicion" like the Stop and Frisk stuff, but even that standard requires that a crime has been, is being, or is about to be committed. Mayor Guiliani got hammered on abusing the Stop and Frisk since he purported to have stopped and frisked over 30, 000 people where only a hundred or so of that group had handguns in possession and no relation to a crime except the illegal possession of a handgun.

My guess is that the Administration is interpreting the 4th Amendment by splitting the one sentence right on security from search and seizure between what constitutes an unreasonable search and seizure and what constitutes probable cause for a warrant to search and seize. Yet, the U.S. Supreme Court already has done that for exemptions from a warrant under the unreasonable clause like, the possibility for the destruction of evidence (all exceptions are emergency related).

The problem in this case, the spying one, is that it moves away from criminal procedure requirements (remember, this is a war, not a crime) to the President's emergency exception under the authorization of war. Bush has argued the latter over and over because his cause is a war, not a crime. That argument is more difficult to argue because he is using criminal procedure to prosecute a war.

Of course, when your bags get searched at an airport you know full well they will be checked. It's a courtesy, meant to be a benefit of the overall service (in giving you peace of mind). If the NSA is spying on you through your phone, through your cell phone, through your new car, through whatever innovative innocuous consumer components they can leverage to spy on you, you certainly don't know about it, suspect it, or are going to think of it as positive and a courtesy bundled into the service.

Your computer being another obvious component to spy on you without your knowledge.

The NSA is most likely collecting essentially all conversations. Given how fat the American pipelines are, it's likely that a large volume of international traffic passes over domestic cables, which the NSA taps with the consent of their owners. They have the means to tap nearly any sort of voice or data transmission. If John Bolton could ask for details of the communications of his co-workers, what could be off limits?

I don't think this is tinfoil-hat territory. The NSA intercepts what it can, as it must, but it now appears that it no longer discards what it should. Storage is pretty cheap, and Fort Meade's got a generous budget.

Jayarbee, Drum turned anti-war in time, and has hardly been banging the drum for the next adventure. He does dwell on the thoughts that might motivate the president's enablers, because, like the rest of us, he wants them defeated.

Let's turn things around. So far several descriptions of the spying have been floated as trial balloons by the Bush administration. All or none of them may be correct, but each release of information is designed to confuse the public.
I think atrios is right---the bulk of the spying under the new rules was a cover for a small amount of very dirty political spying.

First question is would like to have answered is what the NSA does if they stumble upon incriminatory information about a US person that turns out to be not terrorist-related. Do they still "suppress" the identity and discard the information? Or do they forward it to the relevant authorities? Whatever they actually end up doing in these cases, what kind of Catch-22 does this open?

Second question is who is able to see information that is collected before the name is blacked out (specifically whether NSA professionals and/or political appointees), and what safeguards are in place to avoid the dirty tricks of the Hoover era. Do solely NSA intelligence professionals determine whether information should be rejected and identities "suppressed", or are political appointees also part of this process?

The natural third question would be to determine just how it would be possible for some of the accusations about John Bolton would actually occur, if these identities have been "suppressed" but then are suddenly recovered. Have the identities really been suppressed? Does the government have the right to hold this information gathered upon false leads and questionable constitutionality? And is anyone with a high security clearance able to command that this "suppressed" information and identity be brought back together and delivered to his/her desk?

Fourth question would be who initiated this program, political appointees or intelligence professionals, and in each case where a determination is made to skirt the FISA process and go with the presidential determination, who makes this decision - a political appointee or intelligence professional? What is the genesis of this occurring, in terms of coordination with other agencies? Where does the information come from that someone suddenly decides should be acted upon in the extra-FISA process? When this determination is being made, are political appointees key players? When the initial results come back, are political appointees key players in determining if it's terror-related, and should be folded into a standard FISA warrant?

Fifth question is how many of the standard FISA warrants are built upon these unconstitutional extra-FISA searches and seizures? If any of them are, will the FISA judges be made aware of this? What would be the propriety of building legal "probable cause" warrants on illegal "reason to believe" guesswork? What is to prevent the threshold for "reason to believe" to be "any" reason to believe if I can imagine the scenario ("possible")?

I have more questions, which I'll save for tomorrow.

For the record, I feel that Kevin is doing a great job with this blog, and whether I agree with him or not on each and every issue (not), I definitely appreciate the range of issues he brings up, which is why I come around here so often, since the threads are usually interesting and diverse discussions related to germane stuff with some pragmatic importance in the world, and not generally just splitting partisan hairs.

That said, Kevin needs to do a lot better job not appearing to be completely unaware of the critical political issues regarding environmental and ecological conditions and trends. This is definitely a blind spot for him, and makes no sense in the political world we live in today (in some ways, he just mirrors the normal American myopia and ignorance/unconcern with these issues).

In the university, in Europe, and around the world with most educated folks, environmental and sustainability issues are at the front of the agenda.

In America, and especially Orange County, these issues are portrayed as figments of radical imaginations.

A shame, really.

Actually, the lesson of Canada is that corruption scandals are a sure ticket to a long vacation.

I read General Hayden's speech as well as the follow-up questions. Here's some points:

1. General Hayden seemed to say that the reports of the FBI receiving thousands of tips a month are greatly exaggerated. I went back and read the articles. The reporters, the FBI or General Hayden has it wrong. I can't reconcile the differences.

2. General Hayden seemed to avoid answering a question about whether phone conversations between two Americans overseas are monitored. It may have been an inadvertent omission or it may tie in to reports of Cheney, his staff and others getting access to conversations of officials within the administration, particularly, as I recall one article saying, those involved in the North Korean negotiations.

3. General Hayden leaves completely unanswered why Bush did not seek clear authority from Congress if what they were doing was clearly acceptable in terms of al Qaida. It would probably not have been difficult to get a Congressional majority with Republicans in control if this were a circumscribed and focused program that was only about al Qaida. Second, the quality of legal opinions coming out of the Bush Administration have been strained since day one and have always had the purpose of increasing Bush's executive powers. This started well before 9/11.

4. An awful lot of the speech was political in nature and not really much of an explanation of what the issues are. I urge people to read the speech. There was, IMHO a lot of flag waving.

5. General Hayden, for my money, sounds too much like Colin Powell giving his presentation at the UN in Feb. 2003 when he tried to make his highly flawed case for war in Iraq.

6. Whatever we know now is likely to be somewhat inaccurate compared to what we will probably learn in time to come. This is truly one of those evolving stories that requires caution. But given the record of the Bush Administration when it comes to being straight with the American people, investigations are going to be required.

7. If Americans yield to the expansion of surveilance techniques without thorough Congressional oversight, we're asking for trouble. The technology for this kind of stuff is only going to improve and the potential for abuses without proper oversight is only going to grow.

Another reason you might want a way around the FISA court is if the information supporting your warrant is derived from an illegal act like torture. There may be some FISA judges that actually care about fruit of the poison tree.

It would be pretty hard to get a bill through the senate that said FISA warrants can be based on information derived from the torture of people in secret CIA prisons.

No argument, Craig.

There are two stages here: yes, these may be garden-variety wiretaps, but how does the NSA know who to tap? It's got to be more than just looking at the 'previous calls' list on a mobile.

There's always the possiblity that the direction for these wiretaps is the fruit of a poison tree -- i.e. obtained by torture in one outpost of the American Gulag. And that's why they wanted it hidden from a FISA judge.

Essentially, what the Bush Administration is trying to tell us is that the 4th amendment is repealed during wartime,

Yeppy. And given that the 4th Amendment was created directly out of the experience of wartime, that's pretty fucking scary.

Another point of view on this from a former chief counsel for the Senate Intelligence Committee

I notice that you don't mention her name.

Yes, it's sticky Vicky Toensing, GOP spokesliar and smear-merchant, who never saw a law whose meaning she couldn't piss on.

Gen Hayden also said your description of al Qaida is all wet -- sometimes they do forget that we could be monitoring them. Constant front page analysis of our programs are not helpful, especially when not required by the Constitution. What other purpose could the founders have had in inserting the word "reasonable" in the fourth amemdment if there were not times that a warrent were not needed.
I lived in Tampa for three years prior to 9/11 and saw how Sami al Arian manipulated the useful idiots of the west. You guys on the left are continuing that practice today with this jihad against common sense, and the voters will remember it in the future.

Folks, we've got a genuine bed-wetter tonight.

It turns out that the bill of rights is soluble in urine.

What other purpose could the founders have had in inserting the word "reasonable" in the fourth amemdment if there were not times that a warrent were not needed.

That's just a prefatory clause, like "whereas the right of a citizen to the security of their person and possessions shall not be denied, it is hereby affirmed that any such state authority and action must be reasonable, hereby defined as probable cause, with the following detailed requirements...".

Here's the actual amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's clear the right is explicitly stated to one's property, from improper (unreasonable) search and seizure, and then the details of what constitutes a proper and reasonable search and seizure (Warrant) are given:

1. probably cause, supported by oath or affirmation;

2. description of place to be searched;

3. description of persons and/or things to be seized

The Framers couldn't have been clearer. If they wanted to be vague, they just would have stated the right, as in some of the other amendments (as with the 1st), but, as this amendment names a condition (reasonability), and not an outright refusal (as with the 1st amendment forbidding this and that), the Framers then go on to clarify the reasonable and proper procedure by which a search and seizure (i.e. Warrant) may legally ensue.

I have no idea why I am literally unable to correctly type "probable cause", even when I actually don't airheadedly transpose "reasonable doubt" for it. :)

"Reasonable doubt" being one example of the assertion of a general right, with a condition ("reasonable doubt"), that is not immediately attached with the specific procedures by which this condition will be met (which makes sense here, since each court case will be different and no specific procedure could possibly be assigned to constitute "reasonable doubt" in every particular case).

So there must be more to this. But what?

Simple..Data base building for metrics enhancement

If the blog entry is true, then why did the democratic lead in the intelignece subcomite write the letter for the record that he did.
(The one that said he was concerned but could not talk to staff)

BAD JIM: Jayarbee, Drum turned anti-war in time

If the blog entry is true, then why did the democratic lead in the intelignece subcomite write the letter for the record that he did.

To record his opposition to the program while respecting the fact that it was classified. The letter was released after it was declassified.

Of course, if you're Karl Rove or Scooter Libby, classfied information can only be protected if it won't destroy your political opponents.

steve duncan - I find it extremely difficult to believe that NSA EMPLOYEES would go along with such a scenario as you've described below. The employees are citizens, of both parties, just like you and I. This is highly unlikely.

===============================================
They bypassed FISA because they're involved in domestic spying on opponents of their regime. It's painfully obvious yet it remains the elephant in the room no one sees or dare speak of. The DNC, Congrssional Democrats (and probably many Republicans), the ACLU, Sierra Club, you name it. It's agreed terrorists would gain or evade nothing by Bush following FISA. The 72 hour retroactive clause assures that. What's left to explain such criminality? Who among you would bet next week's paycheck Bush ISN'T wiretapping those I've mentioned and others?

Posted by: steve duncan on January 23, 2006 at 10:46 PM

Look,

By now it should be clear this President will take as much power as Congress, the Courts and the voters are willing to give him.

Bush has a reckless disregard for truth and a complete disregard for history and precedent.
He will never admit a mistake or a misjudgment, let alone a constitutional infringement.

This administration is adept at deflecting media criticism as so much nattering negativism. Taking bold public stands, issuing "calls", raising the level of rhetoric to be more confrontational just fuels this president's conviction that he is doing the right thing.

The only way to deal with this type of politician is to confront him and his party directly in court and at the ballot box and take away their self-anointed powers every way we can. As long as we fail to confront Bush head on and take his powers away he remains a danger to our national ecurity and civil liberties.

Already with the NSA spying issue Bush is being forced to expend his vaunted political capital in great heaping bundles. We need to keep the legal pressure on and simultaneously peel away voters to support candidates who are willing to publicly proclaim through November that Bush is wrong. We may get some help with further corruption indictments but we shouldn't count on it.

Even if our country gets attacked again you know what Bush will say -- that we aren't spending enough on Homeland Security, we need to re-double our efforts, that Democrats have blocked the very programs that would have prevented the attack, that we can't let our guard down in view of Iran's looming nuclear threat . . .

We just need to send this guy back to Crawford.

I'm sure someone has made this point, but Congress CANNOT pass a law legalizing search and seizure on a basis less than probable cause.

I agree with Steve Duncan that politically motivated spying by the WH may become the big issue in the near future. I also am inclined to believe what Hayden is saying, evidence collected in the field and from targets arising in NSA data are probably used to target a relatively small number of wiretaps that are continually changing in real time.

"Interesting theories. Here's another one:

Perhaps this was motivated simply by the desire to have a fight over it. Then Democrats take the side of the terrorists, and Bush is on the side of defending America. Pushing things just a little too far, far enough to get the Democrats against it, is this administration's MO. Maybe this program came from the same mentality.

Posted by: BRussell on January 23, 2006 at 11:21 PM"

This is also interesting, but messing up with the US Constitution in order to drive public opinion isn't a bit too risky, even for Karl Rove?

"I find it extremely difficult to believe that NSA EMPLOYEES would go along with such a scenario as you've described below. The employees are citizens, of both parties, just like you and I. This is highly unlikely."
Posted by: cs on January 24, 2006 at 8:33 AM

cs, difficult to believe? NSA denizens are likely more gung-ho than Marines when it comes to doing what they believe is involved in protecting the U.S. They're also probably just as easily duped into following criminal orders from superiors unquestioningly. If they're told Ted Kennedy, Howard Dean or Rick Santorum is an enemy of the state and Bush has ordered their communications monitored it gets done no questions asked. They also know THEIR lives are likely scrutinized to the nth degree due to the jobs they hold. The most sensitive eavesdroppers may even be told up front whistleblowing means a long, slow tumble down several flights of stairs resulting in a broken neck.

At the risk of injecting reasonableness where it doesn't belong: the Republicans have literally announced that they will run on national security in the fall, and again in '08. Democrats are weak on the issue, precisely because most folks do not trust us with defending our country.

So it's worth noting that it does NOT help us correct that weakness by attacking Bush for warrantless wiretapping.

It's a good investigation and argument to have, to be sure: damned important. But until SOMEBODY comes up with a CONCRETE example of the NSA recording, I dunno, Jack Murtha talking to an IDF colonel about chickenhawks, it's simply not going to help us much.

On the issue that effectively moves votes (football metaphor alert), it does not help the offensive line gain credibility on third and long when they tackle the quarterback THEMSELVES.

Why are we reading Hayden so closely?

Was he under oath?

Were any of his statements confirmed by reliable third parties?

Would it be at all surprising to discover that this Air Force officer is dispensing chaff?

I agree with those who say that Bush has been spying on political opponents, UN delegates, etc., and this is why FISA wasn't brought into the loop. And hopefully when it all comes out the people will start a second American Revolution.

The most sensitive eavesdroppers may even be told up front whistleblowing means a long, slow tumble down several flights of stairs resulting in a broken neck.

Yeah, okay--watched a little too much 24?

theAmericanist,

You sound so timid when it comes to defense and national security.

Democrats cannot run away from this issue -- we will not win back the White House unless and until we demonstrate our policies can protect the country better than Bush's. We will win votes with better defense alternatives; we will look weak trying to hide behind other, easier to win issues like corruption and Medicare.

Start by:

1. Emphasizing how we would re-direct DHS spending to more important projects, reduce waste and corruption, give the DHS logical organization and chains of authority, improve disaster response, appoint professionals, eliminate cronyism

2. Emphasize commitment to "Human Security" -=- international problem solving without guns, fighting disease, intervening in tribal conflicts to prevent genocide, environmental cooperation, economic development, educating foreign students

3. Cut out spending on wasteful weapon systems like missile defense. Wasteful spending weakens our focus on more important priorities.

maybe there's a simple explanation, ala Cheney: Hayden is lying. Straight up. Anybody out there really not think that's possible?

"So it's worth noting that it does NOT help us correct that weakness by attacking Bush for warrantless wiretapping."

How is the US public opinion divided over this?

By 'this', I mean this NSA issue.

PR:

I thought the letter mentioned that the sentaor did not understand the program.

That is why I am wondering why he would write it if the breifing was so understandable.

R
J

they're spying on journalists - nothing else makes sense.

The answer to why they didn't get court permission is obvious: the whole operation had nothing to do with alQaeda.

The real mystery, IMHO, is what they were really looking for.

Shorter Joe,

Without straws to grasp at, all I have left to hold on to are Republican lies.

I find myself seized with uncontrollable laughter when I read the attempts by bloggers and commenters to come up with the most biting, incisive hyperbole to describe your visceral hatred for the pure evil BusHitler regime and their intolerable disregard for the Constitution.

I can just hear you people, stressing the "tu" syllable for added effect, a wagging accusatory finger raised, as though the word "ConstiTUtion" is somehow self-explanatory and/or sacred to you.

This is coming from the very same people who have gone to extraordinary lengths to sell the concept of a "living Constitution."

The people who, when it suits them, argue that the Constitution doesn't actually mean what it says.

The people who invented an entire Constitutional interpretive method in order to convince others that the original meaning of well-established Constitutional phrases can "evolve" in order to "keep up with the times."

The First Amendment, by its own terms, applies only to Congress, and doesn't apply to the States, but you blithely disregard the text in order to impose federal decisions on State actions.

The Fifth Amendment prevents takings of property for private use, to, for example, build Pfizer an office building and parking lot. But you shrug your collective shoulders and yawn.

But now you bitch and moan about the terrible Republicans and how they're not respecting the black-letter requirements of the Fourth Amendment. Why should that one be any different?

I laugh.

When I am finished laughing, I will cry over the shit-pile of a world you people have helped create, but for now, I am laughing at you.

Shorter Joe: Without straws to grasp at, the only thing left to hold on to are lies fed to me by my Republican masters...

kevin completely missed the most important part of the General Hayden story. The General publicly and falsely claimed that the 4th Amendment calls for a standard of "reasonable" cause when it clearly says "probable cause". hayden was called on it by a rare reporter who didn't have his head up his ass and the General insisted that he really knew the 4th Amendment and it didn't say "probable cause".

What's worse is neither the Washington Post nor the New York Times mentioned this either.

The claim that Congress is a sieve is fatuous.

If that were so, then the existence of the program would have been leaked immediately when Congress was "briefed" on the Program.

Once again, the Bush administration has told so many lies that it can't keep track and is therefore constantly contradicting itself, thus providing the its own proof of its own lies.

Elrod wrote: Not necessarily true. As Orin Kerr points out, people making phone calls from the US to overseas are on a dividing line between where the Fourth Amendment applies and where it does not. E.g. the Fourth Amendment doesn't mean customs officials can't search your bags without a warrant about entering the country. Thus, nothing about the Fourth Amendment necessarily governs these calls nor the burden of proof necessary to justify them. However, as Article I of the Constitution clearly states, "Congress has power of the Regulation and Government of the armed forces," which would include the modern NSA. Alas, Congress can decide which rules are acceptable for NSA to follow and which ones are not. If there is a gray area then it is up to the courts to decide. Either way, it is far from clear that Congress "cannot" change the statute from "probable cause" to "reasonable suspicion" when dealing with calls between domestic and international persons.

Cmdicely made the same objection on the other thread. It is correct that FISA applies to some activities for which there is not a constitutional warrant requirement. The problem is that it applies equally to activities for which there IS a constitutional warrant requirement. And it would be unconstitutional to lower the warrant standard (below probable cause) for those (latter) activities.

PJ, I dunno that rearranging the DHS org chart, "without guns" and a massive health care program is gonna persuade Americans that we're to be trusted defending the country against al Qaeda, mullahs with nukes and North Korea.

Serious as the NSA thing is, until it becomes a CONCRETE scandal, e.g., the way Mike Brown only became a disaster for the Bush administration AFTER Katrina made the consequences of cronyism visible, it simply doesn't move enough votes. It's just more preaching to the choir -- while the congregation, much less the unconverted outside, wonder what WE'D do about the bad guys who want to kill us all.

And the more we talk about how Bush oughta be impeached, the more those folks conclude we literally have nothing to say about defending 'em.

what has become clear to me is that there are several different programs spying on Americans, and people come forward to defend the one they know not realizing there are others as well. There probably is a "driftnet" system, there probably is a buying pattern system, there probably is an email watch system (remember the stories about vans equipped to intercept wireless internet traffic), there probably are several "targeted" phone tapping systems, at least one of which traces peoples calls out three or four degrees from the original suspect (none of whom require a warrant or oversight, according to this president).